Analysing The Theoreotical Framework Of IPR: Present Context


With the Intellectual Property (IP) field making rapid progression in recent times, the importance of protecting and safeguarding the assets associated with it has concurrently being felt throughout the industry. The assets of a company associated with it including the patents, trademarks, copyright, trade secrets has become extremely valuable and a major source of wealth. These assets have the potential to provide both short-term and long-terms benefits to the business of a company.

With this rapid progression of the Intellectual Property field, it also becomes pertinent to look towards the theoretical framework of this field. The theoretical framework includes the various types of theories which have been propagated through centuries by different legal luminaries and jurists. This article strives to cover five of the most important theories, along with providing little additional information on the other theories present in addition to it. The five theories strived to be covered through this article are:

  • The Natural Rights Theory- main supporter is John Locke.
  • The Utilitarianism Theory- main supporter is Jeremy Bentham and John Mill.
  • The Ethic and Reward theory.
  • The Moral Desert Theory- main supporter is John Locke.
  • Personhood Theory- main supporter is George Hegel and Immaneul Kant.

These theories become important in understanding the rights provided though Intellectual Property to the original owners or the creators and the reasoning behind it. The final objective of all the theories is mainly the safeguarding and protection of the interests of the creator, and prevention of unauthorized misappropriation or use by third-parties. It is also important to note that each of the theory has its associated advantages and disadvantages, and no theory can be said to be bereft of problems.

The Natural Rights Theory

This theory was principally given by John Locke. The main basis of this theory is that the owner of the things has complete natural rights over these things since they were created out of his/her own efforts. The statement given by Locke is this regard was that “individuals are entitled to control the fruits of their own labor”.[i] That is the creator of the innovation acquires natural rights over its’ use, since he used his own intellectual labour.[ii] 

The illustration provided in this regard is that when a creator puts his intellectual labour towards the creation of an object, then there is an inherent incorporation of the labour done to the new product being made. This incorporation cannot be discarded without causing damage to the creation. Subsequent to that the individual acquires natural rights over his creation, thereby preventing others from mis-using or taking advantage of his labour.

The owner of the object enjoys a number of rights including declining others from utilizing the product without his permission, and the right to transfer the object to a third-party. from using Since the creation was made by the efforts, and originality of the creator.

This theory signifies that a person has a fundamental right over his own creation. The creation is the outcome of the owner’s own hard work, efforts and ability. Moreover, it has been stated that this theory of intellectual right applies to both tangible and intangible assets. It allows the owner to use and also exclude others from its use. This form of rights-based theory has found several IP supporters, though the loopholes in this theory still persists.

A key drawback is that this theory envisages a situation where in the individuals are given the ownership for an unlimited period of time. However, in practice different forms of IPR are given protection for a specified period-of time, after which it comes into the public domain. Also this theory seems vague since it provides for the situation wherein an creator just by making a particular creation in a rare field, would automatically capture the whole market of that field, since others would be prevented from using his creation for creating better or more efficient products.

So, in brief it can be summarized that this theory puts emphasis on doing innovation by an individual, and limits other people from doing the same, when it comes to the idea.

The Utilitarian Theory  or the Incentive Theory

The famous saying of ‘greatest happiness of the greatest number’ is the main part of this theory. This theory in essence indicates ‘social welfare’. The chief proponents of this theory was Jeremy Bentham and John Mill. The use of the alternate term ‘incentive theory’ provides that it is the responsibility of the general public to respect the creator of the inventions, since these inventions or creations help in bringing profit to the entire community.[iii]

Creations made on the basis of this theory can help in creating a significant economic impact on the people and the society at large. It provides for creations or innovation which would help the public at large. That is, this theory can be said to put a bar on the use of trade secrets, since these secrets cannot be disclosed to the period even after a specific period times, unlike other intellectual property assets.

It can also be construed that both the innovator and the society should be benefitted within this theory. This theory is also conversely also known as the incentive-based theory. The main aim is to create intellectual property creations which help in adding value to the overall development of the society and contribute to its growth.


The Ethic & Reward Theory

The basis of the rationale behind this theory is that, the creations of Intellectual property should be seen by the society as “an expression of acknowledgement and indebtedness to an author for doing more than society expects or feels that they are obliged to do”.[iv]

That is in essence this theory provides for the providing proportionately benefits or rewards to the creator, and at the same time requires the creator to contribute proportionately. That is, there should be a fine balance between these two aspects.

The creator is provided with adequate legal protects to protect his creations, by restricting other individuals from using his work, even when it becomes available publicly. The two main Intellectual Property assets which fall within this are “copyright and design” trademarks. However, this theory suggests that the benefit from such right can be obtained by the innovator in the initial years but if the innovators deserve the same right or not is questioned too under this theory.

This theory in essence provides the original creators with “exclusive rights”, serving as a mark of appreciation for the efforts taken by him/her. Only if it is appreciated by the general public, then only the ethics behind IP rights would be realized.

The main ground taken by the supporters of this theory is that the creator created inventions which contributed towards the ‘social good’, on similar lines as the utilitarianism theory. They believe that the creators should be adequately rewarded for the efforts put in.  However, some of the critics have pointed out that following this form of theory would be providing the creators with excessive rights, which should not be the case. The rationale behind this is that the creators would as it is gain profits from his creation, and providing him with more such rights would be excessive in nature.


Moral Desert Theory

The chief proponent of this theory was the noted jurist John Locke. This provides that the creators has the full rights to enjoy the ‘fruits of his or her labour all by himself’.  That is within Intellectual Property laws, the owner is given the ‘full rights’ to use his creation as he wants and restrict others from using it. 

The statement given by John L. in support of this theory is that, “every man has a property in his own person”. He substantiates this fact by reasoning that the creator had put his own efforts and work into the creation, and therefore it is only he who should enjoy the ‘fruits of his labour’. This theory compensates a worker’s performance for his “effort, ability, persistence, industriousness, luck, time spent, the difficulty, danger of the work, leadership”.[v]

However, one of the drawbacks of this theory as the famous jurist Leggett provides is that if an ‘exclusive right’ is given to an idea, it cannot be presumed that the exact same mind did not occur to anyone else. Therefore the only solution is not there should be some form of flexibility in a manner that the rights of the creators are not infringed, and at the same time others not  completely prevented form using that idea for creating a new product from that exact same idea.

The Personhood Theory

The chief proponent of this theory is George Hegel and Immanuel Kant. This theory is based on the fact that intellectual rights protect the development of the personality of the individual.

The personality of each individual is distinct from each other, which show up in the creations which he does. In several cases, the distinct personality helps in recognizing the Intellectual Property creations as belonging to a particular individual. The primary essence of this theory is that when a creator of an Intellectual Property creates something in addition to his labour, he also puts some form of his personality into the creation. That is, the personality of the creator is “inherent” in the final outcome of the IP creation. This theory also provides that the creator also should get ‘exclusive rights’ over the personality that is created by him through his inventions.

This theory in simple sense puts forth the fact that along with monetary benefits, the creator should also safeguard his personality. That is, the work done is synonymous and closely relates to the ‘true personality of the creator.


Economic Theory

This theory of Intellectual Property relates to mainly to the monetary benefits which the creator or the innovator gets, adding value to the economy. Within this theory it is provided that suitable incentives should be given in order to cover the expenses borne by the innovator. However, several experts have been divided on how much inventive is actually required by the innovator, since it might happen that the innovators are not the real owners of the property rights[vi].

One of the primary criticism of this theory is that it is based on the ‘free rider’ principle. In simple terms, it signifies an individual who accrue benefits from a particular product, without contributing or without much contribution to its production. That is, the benefits outweigh the efforts and costs borne by him to produce the product. Similarly, within the ambit of this theory also there is a good chance that the person who is not the original owner, or who has applied very little mind in creating the product or innovation, gets benefits which are over-valued. It is for this reason only that in several Intellectual Property assets, a limited duration of protection is given to the innovator. 


Thus, the above discussions on the five most essential theories of Intellectual Property Right help in providing a strong and fundamental jurisprudential aspect of IPR.  The key, common aspects within these theories include ‘exclusive right’ provided to the owner, and both monetary and pecuniary benefits which the owner gets. It becomes essential to understand these theories in order to understand the jurisprudential aspect of IPR, and understanding the theoretical framework of which the modern-day aspects of Intellectual Property works. As the chief proponent of these theories, mainly John Locke, Bentham, Hegel, Kant etc. state, each theory has its intricate pros and cons attached to it.

In an ideal scenario, to derive the maximum benefit out of these theories, it is essential that a combination of all these theories is understood and applied accordingly. However according to me the most critical of this theory in the present context is the utilitarian theory, because it provides for providing the maximum possible benefit to the maximum number of people. It encompasses within its ambit the theory of ‘greater good’ which becomes crucial for ensuring that the benefits of IPR reach to the public at large and can be enjoyed by everyone. 







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